FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NABIL AHMED SYED, No. 17-71727 Petitioner, Agency No. v. A061-375-110 WILLIAM P. BARR, Attorney General, Respondent. OPINION On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted June 4, 2020 Pasadena, California Filed August 12, 2020 Before: John B. Owens and Patrick J. Bumatay, Circuit Judges, and Donald W. Molloy, * District Judge. Opinion by Judge Bumatay * The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 2 SYED V. BARR SUMMARY ** Immigration Denying Nabil Ahmed Syed’s petition for review of a decision of the Board of Immigration Appeals, the panel held that Syed’s conviction under California Penal Code § 288.3(a), for attempting to communicate with a child with the intent to commit lewd or lascivious acts upon that child, was categorically a crime involving moral turpitude that made him removable. Applying the categorical approach, the panel first observed that § 288.3(a) includes the following elements: (1) the defendant communicated with or attempted to communicate with a minor; (2) the defendant intended to commit one of 15 enumerated offenses involving that minor; and (3) the defendant knew or reasonably should have known that person was a minor. Because not all of § 288.3(a)’s enumerated offenses involve moral turpitude, the panel explained that the statute is not categorically a crime involving moral turpitude. However, the panel concluded that the statute is divisible and explained that the government asserted that Syed’s § 288.3(a) conviction was based on a specific intent to commit a violation of California Penal Code § 288, which criminalizes certain lewd or lascivious acts upon a child accomplished with the intent of arousing the sexual desires of either the perpetrator or the child. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SYED V. BARR 3 The panel held that the full range of conduct proscribed by § 288.3(a) with a specific intent of violating § 288 is a crime involving moral turpitude. First, the panel explained that the California statute is substantially similar to a Washington statute the court had found to be a crime involving moral turpitude. Second, the panel explained that § 288.3(a) and § 288, together, prohibit communicating with a child, while knowing or having reason to be believe the victim is a child, for the purpose of committing a lewd or lascivious act on the child. The panel concluded that a conviction under those statutes evinces an offense that is so “inherently wrong” and so “contrary to the accepted rules of morality” that it is a crime involving moral turpitude. The panel addressed Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), which held that § 288(c)(1) is not a crime involving moral turpitude. Menendez focused on the offense’s lack of a “good-faith reasonable mistake of age” defense because a defendant could ...
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